K v The School & Anor

A school does not discriminate merely because a disabled pupil is sent home after an accident where its refusal to clean and change him is justified by objective health and safety evidence. The duties under the Disability Discrimination Act 1995 and Part IV of the Education Act 1996 are complementary. A school may discharge its disability-related duties by taking reasonable steps, including seeking the local education authority’s assistance and amendment of the pupil’s statement of special educational needs. It cannot reasonably be required to continue a dangerous lifting practice without proper equipment, facilities, training or resources. The court left open questions about the classification of personal care, comparators and reasonable adjustments because justification disposed of the appeal.

Ms K appealed against the dismissal of her appeal from a decision of the Special Educational Needs and Disability Tribunal, which had rejected her claim that the School unlawfully discriminated against her disabled son. The claim concerned the School’s refusal, on several occasions, to clean and change him after bowel accidents, resulting in his being sent home. The Administrative Court dismissed her appeal in [2006] EWHC 622 (Admin). By the time of the Court of Appeal hearing, a fresh statement of special educational needs had increased provision and the immediate problem had been addressed. The central issues were the interaction between disability discrimination duties and the SEN regime, and whether the School had a justified defence based on health and safety.

Wall LJ delivered the leading judgment. Hallett and Auld LJJ agreed. The appeal was dismissed.

1. The Court did not need to decide whether cleaning and changing the pupil was education or an associated service, whether the correct comparator had been used, or whether the provision was an auxiliary service or reasonable adjustment. Those issues were left open because the claim failed on justification.
2. Assuming that the refusal amounted to less favourable treatment under section 28B(1)(a) of the Disability Discrimination Act 1995, the School had an unanswerable justification defence under section 28B(1)(b). The Court also assumed, without deciding, that the pupil had been placed at a substantial disadvantage in relation to an associated service. The School had nevertheless taken the reasonable steps required by section 28C and any failure to comply was justified.
3. The health and safety report provided objective evidence that lifting the pupil without appropriate equipment, facilities and training was dangerous and unlawful. A responsible head teacher was entitled, and required, to instruct staff not to lift him and to seek assistance from the local education authority, including amendment of the statement of special educational needs. The School could not reasonably be required to continue the unsafe practice.
4. The duties under Part IV of the Education Act 1996 and the disability discrimination provisions were complementary. The School’s essential SEN duty was to provide the special educational provision specified in Part 3 of the statement. If additional provision was needed, the practical route was revision of the statement and provision of further resources by the local education authority.
5. Where a parent obstructs the only realistic avenue available to the School for securing provision to meet the child’s needs, the parent cannot simultaneously allege discrimination arising from the School’s inability to provide that service. On the facts, the School had fulfilled its statutory duties and was justified in refusing to continue the dangerous practice.

• Court of Appeal (Civil Division): in [2007] EWCA Civ 165, dismissed the appeal.
• Administrative Court, Queen’s Bench Division: in [2006] EWHC 622 (Admin), dismissed the appeal from the Tribunal’s decision.
• Special Educational Needs and Disability Tribunal: dismissed the discrimination claim in its reserved decision dated 2 June 2005, following a hearing on 12 April 2005.